Jackson v. Port Gibson Bank

• Decision Date: 13 March 1905
• Citation: 85 Miss. 645,38 So. 35
• Court: Mississippi Supreme Court
• Parties: WALTER JACKSON ET AL. v. PORT GIBSON BANK ET AL

38 So. 35

85 Miss. 645

WALTER JACKSON ET AL. v. PORT GIBSON BANK ET AL

Supreme Court of Mississippi

March 13, 1905

November 1904

FROM the chancery court of Claiborne county, HON. WILLIAM P. S VENTRESS, Chancellor.

The Port Gibson Bank and another, the appellees, were complainants, and Jackson and others, appellants, were defendants in the court below. The suit was to confirm title to real estate and to cancel and remove clouds therefrom. The defendants demurred to the bill of complaint, and from a decree overruling the demurrer they appealed to the supreme court.

The complainants charged in their bill that respondents had executed a certain trust deed conveying the lands described in their bill; that default had been made in the payment of the debt, and that the deed of trust had been foreclosed, and the lands bought at the sale by one of them and leased by the purchaser to his co-complainant, and that respondents refused to surrender possession. Nothing was said in the bill about the trustee's deed. The prayer was for the cancellation of the claim of respondents as a cloud upon complainants' title.

Decree reversed and cause remanded.

F. A Polsey, for appellants.

The bill nowhere alleges that complainants, or either of them ever received a deed from the trustee, or that complainant bank ever, at any time, held so much as even a color of title, legal or equitable, to the land from which they so summarily seek to eject the defendants. On the contrary, the bill itself shows that defendants had a good title and were in rightful possession.

Now what sort of a support is such a showing for so far-reaching a prayer, or for the issuance of a drastic writ of assistance? This court in Chiles v. Gallagher, 7 South. Rep., 208, said: "There is no more serious and prevalent error than that which seems to exist in relation to the rights of parties to exhibit bills to cancel clouds upon titles. It is frequently assumed that if a complainant can show some antecedent claim, however vague and unsubstantial, he may assail and dispel anything which is a cloud upon the real title. We cannot conceive what has given rise to this erroneous view, for it is settled by an unbroken current of decisions that to enable a complainant to cancel the defendant's title as a cloud, he himself must show as perfect a title, legal or equitable, as would enable him, the title being a legal one, to recover against the defendant in an action of ejectment." And again, in Wilkinson v. Hiller, 14 South. Rep., 442 (where the opinion is supported by no less than fourteen Mississippi citations), this court said: "If anything can be considered settled by decisions, it is that a complainant seeking to cancel the title of his adversary must show either a good legal or equitable title in himself. . . . On the final hearing the chancellor should have dismissed complainants' bill, which will now be done here."

C. A. French, on the same side.

The demurrer in this case should have been sustained, if for no other reason, because the Port Gibson Bank et al., who were complainants below, did not deraign their title to the land in controversy sufficiently as is required by Code 1892, § 501. Long v. Stanley, 79 Miss. 298. In the case at bar the complainants and defendants both claimed the land in controversy from a common source, and the complainants did not by their bill of complaint, with the exhibits thereto, show a perfect title. Therefore the complainants did not show by their bill of complaint that they were entitled to the relief prayed for.

E....